Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11286
SECOND DIVISION Docket No. 10981
2-C&NW-CM-'87
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Cayman Roger Johnston was unjustly deprived of wages to which he
was entitled when the Chicago and North Western Transportation Company violated the Collective Bargaining Agreement, particularly Rules 11, 28, and 124,
for the period of November 17, 1983, through December 23, 1983, when Carrier
failed to properly distribute the overtime work at Belvidere, Illinois.
2. That the Chicago and North Western Transportation Company be
ordered to compensate Cayman Roger Johnston in the amount of 32.5 hours at the
overtime rate of pay of $19.515 per hour, for a total of $634.24.
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant seeks overtime payments for the period from November 17,
1983, through December 23, 1983, claiming a total of 32.5 hours. The Rule
claimed to be violated is Rule 11 which reads in relevant part:
"Rule 11: When it becomes necessary for employes
to work overtime they shall not be laid off during
regular working hours to equalize the time.
At shops, enginehouses, repair tracks and inspection points, overtime will be distributed as
equally as possible between the men of such craft
or trade at each shop, enginehouse, repair track or
inspection point . . .'
The Carrier answered the claim on March 12, 1984, stating in part:
Form 1 Award No. 11286
Page 2 Docket No. 10981
2-C&NW-CM-'87
"Records indicate that prior to November 17,
1983 Mr. R. G. Johnston, during his regular shift
had attempted to check the tiedowns and it bothered
his back and informed Mr. J. F. Ziegler the Car
Foreman and he was placed on other jobs. Mr. John
ston was not utilized on the claim dates for this
reason. Mr. Johnston was asked on January 30, 1984
if he wanted to stay and check tie-downs and he
declined, however, on February 6, 1984 Mr. Johnston
did work one (1.0) hour overtime checking the tie
down."
The record shows that Claimant had received a back injury on March 9,
1983, and was placed on light duty for approximately ten days. These facts
make the response of the Carrier completely irrelevant. The Board will not
extrapolate without evidence backwards from January 30, 1984, the assumption
that Claimant could not perform overtime during this period.
The Carrier also answered asserting that the Claim was without Rule
support. Rule 11 obligates the Carrier to make a good faith attempt to regulate overtime. Of course this will not be done with mathematical precision,
but equality should be attempted. It is obvious that the Carrier made the
assumption that Claimant would decline the overtime and left him out of the
equation. Barring some physical limitation such as light duty or the like,
the Carrier is obligated to offer to each employee covered by Rule 11 a share
of the overtime when the needs arise.
Because the Carrier did not make a good faith attempt to equalize
Claimant's share of the overtime, his Rule 11 rights were violated. The Carrier submitted an Award from this property which rightfully held that on a
single incidence basis the Carrier has leeway to make differing assignments.
Second Division Award No. 8488. We concur in that Award. Oftentimes inequities must exist so that equalization is possible, i.e. a "catch up" situation.
Such was not the case here. Within the time frame in question many
overtime assignments were made and no attempt was made to equalize Claimant.
He is claiming 32.5 hours, the total overtime worked by other employees with
more overtime than Claimant during the relevant time of the Claim. The
Carrier rebuts this by stating that if there is any liability the overtime of
the other employees should be averaged and the overtime worked by the Claimant
subtracted from that average to form the basis of a Claim.
However, the data cannot be considered in the abstract. Claimant
worked 8.5 hours, began with a base of 458.75 total hours and ended with a
base of 467.25. Carman Clouse worked 11 hours, began with a base of 491.75
and ended with a base of 502.00. Carman McElhinney worked 18.75 hours, began
with a base of 528.75 and ended with a base of 544.75. Carmen Ekleberry had
only one overtime date of 2.75 hours and ended with a base of 480.75 hours.
Form 1 Award No. 11286
Page 3 Docket No. 10981
2-C&NW-CM-'87
When this Board observes the total picture, it can only conclude that
no attempt was being made to equally distribute the overtime. Claimant was
behind the others at the start of the period and ended the period even further
behind. This is not the type of deviation permitted under the cited Awards.
Therefore, we find that the Claim should be granted. The data shows that on
each of the dates that the Claimant and the other employees worked tiedown
overtime, there was an overlap. Since Claimant cannot double up his overtime
within the same time frame, the Board will subtract the 8.5 hours worked from
the 32.5 hours claimed. This results in a total of 24 hours payable at the
overtime rate.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
(,.
-~4~
Nancy J ~er - Executive Secretary
Dated at Chicago, Illinois, this 1st day of July 1987.